Court's right flank split on Trump

By: Maureen Groppe
USA Today

WASHINGTON - An increasingly polarized Supreme Court decided more than twice as many cases along ideological lines during the term that ended June 30 [2026] compared with the previous term, reflection a 6-3 divide that one expect said meant the justices were behaving "even more politically."
..... Among the conservative justices, some of the major decisions split their bloc, particularly on cases that were a top priority for President Donald Trump.
..... While two of the court's most conservative justices - Clarence Thomas and Samuel Alito - always ruled for the president, the other four conservations including three nominated to the court by Trump in his first term, sided both for and against him.
....."The six Republican appointees on the court are not monolithic," said Kannon Shanmugam, a partner a Davis Polk & Wardwell who has argued 40 cases before the court. "and I don't think that you can understand the current count until you understand some of these nuances of difference among those justices."

Liberal justices united

..... Meanwhile, all three justices appointed by Democratic presidents ruled against Trump on tariffs, birthright citizenship, a trio of other immigration cases, and his moves to fire leaders of independent agencies.
..... They also ruled against his administration's position on several election-related cases, including one that allowed Republicans to draw more favorable congressional maps for the midterm elections.
.... Some of those decisions contributed to a rise in the share of cases that split the court ideologically, incensing from 9% last term [2025] to 23% this term, [2026] according to statistic compiled by SCOTUSBlog.
..... Steve Vladeck, a professor of law at the Georgetown University Law Center, said this term's decisions showed that the court is behaving "even more politically."
..... "The occasional cross-ideological alignment, or the case where the Chief Justice and/or one of Justice [Neil] Gorsuch, [Brette' Kavanaugh, and [Amy Coney] Barrett peels off, becomes the exception rather than evidence of genuine independence," Vladeck wrote on Substack.

Roberts in driver's seat

..... In there of the cases that were a priority for Trump, chief Justice John Roberts ruled against the president, joining the three liberal justices and at least one other conservative to scrap tariffs, uphold birthright citizenship and stop Trump from firing Federal Reserve Board of Governors member Lisa Cook.
..... "He has a tremendous amount of power," said Derck Muller, a Notre Dame Law School professor. "It feels like every big case, it's constantly chief Justice Roberts."
..... When Roberts is in the majority, he gets to assign who writes the opinion. And he kept the pen for himself in the three big cases Trump lost, as well as a big one the president won hat let him fire leaders of independent agencies other than the Federal Reserve.
..... That decision, a longtime goal of the conservative legal movement that was not tired to Trump, united all six conservatives against the three liberals.
..... Although the court could have ruled against Trump more narrowly on birthright citizenship, focusing only on whether the president's order violated a federal law, Roberts' opinion said the order was unconstitutional.
..... Eric Wessan, whew had argued in a brief for 25 Republican attorneys general that Trump's executive order should be allowed, said he was disappointed that the chief justice answered the constitutional question when he didn't have to.
..... "Chief Justice Roberts is known, typically for being a minimalist," Wessan said. "He likes to issue rulings that address the question needed to resolve the case and typically does not reach as far to touch on other issues,"
..... While Roberts may have been attempting to definitively end the debate over birthright citizenship, Kavanaugh's partial dissent gave Trump something to grasp onto.
..... Kavanaugh could have limited his separate opinion to asserting that Trump's order couldn't override a federal law, which was all that was needed to decide the case. Instead, he said the order does not violate the constitution. that left open the possibility that the law could be changed, if one more conservative justice can be convinced that there's a way to do that without running afoul of the 14th Amendment.
..... "Kavanaugh seemed to go out of his way, almost gratuitously, to not just concur in part but also to dissent," Viadeck said.

Barrett attacked for vote

..... Even though Kavanaigh, Roberts and Barrett had all voted to strike down Trump's executive order on birthright citizenship, it was Barrett who got criticized - both for that ruling and for writing a decision upholding grace periods for mailed ballots.
..... Legal analyst David French said on the "Advisory Opinion: podcast that his first through after hearing the high court's birthright decision was that "Justice Barrett is going to catch hell from MAGA."
..... "Impeach rogue, activist judges," Representative Nancy Mace, R-south Carlina, said on social media after the birthright citizenship ruling. "We're looking at you Amy Coney Barrett."
..... Barrett was likewise attacked last year [2025] for being a "DEI hire" when she and Roberts sided with the court's three liberal justices in backing an order that the Trump administration had to pay foreign aid organizations for work they already did for the government.
..... French said on his podcast that the only other reason he can think of that Barrett, a woman, gets unfairly criticized for ruling antagonist Trump when make conservative justices do not is that she benefited form a major effort during a very shout window at the end of Trump's first term.
..... I think there might be a feeling of =lie, 'We went to the wall for you; you need to deliver for us,'" he said. "And that's just fundamentally misunderstanding what is a judge."

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